Boston v. Publix Super Markets, Inc.

• Decision Date: 01 May 2013
• Docket Number: No. 4D11–1521.,4D11–1521.
• Citation: 112 So.3d 654
• Parties: Chalunda BOSTON, as Personal Representative of the ESTATE OF Keith L. JACKSON, Sr., Appellant, v. PUBLIX SUPER MARKETS, INC., and Edgar Javier Ramos, Appellees.
• Court: Florida District Court of Appeals

112 So.3d 654

Chalunda BOSTON, as Personal Representative of the ESTATE OF Keith L. JACKSON, Sr., Appellant,
v.
PUBLIX SUPER MARKETS, INC., and Edgar Javier Ramos, Appellees.

No. 4D11–1521.

District Court of Appeal of Florida,
Fourth District.

May 1, 2013.

[112 So.3d 655]

Bard D. Rockenbach of Burlington and Rockenbach, P.A., West Palm Beach, and Paul M. Adams of Young & Adams, Boca Raton, for appellant.

Katherine E. Giddings, Thomas A. Range and Kristen M. Fiore of Akerman Senterfitt, Tallahassee, and Gerald B. Cope, Jr. of Akerman Senterfitt, Miami, for appellees.

WARNER, J.

Appellant, Chalunda Boston (“Boston”), as personal representative of the estate of Keith L. Jackson, Sr. (“the decedent”), appeals the trial court's final summary judgment in favor of appellee, Publix Super Markets, Inc., and Edgar Javier Ramos, Publix's employee, finding that both Publix and Ramos were covered by worker's compensation immunity for the death of Jackson, a Publix employee. We agree that Publix, the employer, is entitled to immunity under section 440.11 because the employer's conduct was not virtually certain to produce injury or death, thus failing to meet the statutory exception to immunity. We reverse, however, as to the employee, Ramos, as material issues of fact remain as to whether Ramos was grossly negligent and thus cannot assert statutory immunity.

Appellee Ramos was employed by appellee Publix as a spotter driver in the Deerfield Distribution Center. His job was to use Ottawa tractors to move trailers to loading bays to load and unload merchandise at the center. On the morning of the accident, Ramos, operating the Ottawa 934 tractor, was called to a loading dock. The decedent was next to him in a different Ottawa tractor and was called to the same dock. Ramos drove toward the loading dock, backed up the Ottawa 934 into position, and exited the tractor. The decedent also approached the area in his tractor, parked in the neighboring loading dock, and got out of the tractor. Ramos thought the decedent was going to talk to another driver nearby. Ramos went back into the tractor after hooking up to the trailer, looked in his mirrors, and released the air brakes. He backed the trailer flush with the warehouse door, felt a “bump against what [he] thought were the dock pads,” and set his brakes. Another driver began yelling at Ramos to pull forward, because the decedent had been crushed between the rear of the trailer and the warehouse dock pad. The decedent had apparently walked behind the trailer, of which Ramos had no knowledge. The decedent was pinned behind the trailer for two to three minutes, according to another witness, who also stated that with such trailers, the driver would have no way of seeing what was happening directly behind his trailer. The decedent died shortly after the incident.

Although the Ottawa tractors are equipped with backup alarms, an inspection after the incident revealed that the backup alarm on the Ottawa 934 was not working. Ramos testified that he knew the backup alarm was inoperable and had not been working for months. He did not report it to Publix maintenance, nor did he fill out inspection reports designed to call attention to any maintenance problems.

[112 So.3d 656]

Publix's policy for safety inspections and maintenance would have required that the Ottawa 934 be taken out of service to repair the backup alarm, but the Ottawa 934 was overdue for safety inspections. Nevertheless, it had been in for other maintenance, and the maintenance staff should have checked the backup alarm and taken the tractor out of service to repair it.

No prior accidents had occurred at the distribution center involving Ottawa tractors, with or without a failed backup alarm, in which an employee was pinned between the back of the trailer and the loading dock or where a tractor-trailer backed into an employee. Publix knew of three prior accidents at the distribution center, but none involved a tractor, and none occurred in backing up a vehicle.

Following this incident, Publix was cited by OSHA for having an inoperative backup alarm on the Ottawa 934. The OSHA report stated that Publix “did not furnish to each of [its] employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees....”

Boston filed suit against Publix and Ramos for the death of Jackson. In her complaint, Boston alleged that Publix had committed an intentional tort and that Ramos was grossly negligent in the accident. In their answers and affirmative defenses, both Publix and Ramos claimed that they were entitled to worker's compensation immunity, as worker's compensation benefits constituted the plaintiff's exclusive remedy. After extensive discovery, both defendants filed motions for summary judgment. Publix argued that Boston could not “establish the extremely high burden required to overcome the workers' compensation immunity afforded Publix under the 2003 amendments to Section 440.11.” The parties filed extensive affidavits and depositions in support and opposition to the motion. The court granted summary judgment in favor of both defendants, concluding:

After reviewing the facts and circumstances of the instant case, the Court finds that even taking the facts in the light most favorable to Plaintiff, the evidence fails to establish that Publix engaged in conduct that Publix knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the decedent. The Court further concludes that there was no concealment of the risks involved, and the danger should have been obvious to the decedent. Thus, this tragic accident is just that, an act of simple negligence. There are no factual issues to disturb the legislative protection afforded employers under Chapter 440 and both Publix and Ramos are protected by the immunity provision of Chapter 440.

From this judgment, Boston appeals. We review de novo this final summary judgment which finds worker's compensation immunity. Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (citing Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)).

The worker's compensation statutes provide a strict liability system of compensation for injured workers in which the worker receives the guarantee of rapid compensation for work related...